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September 12, 2017

Young: AB 570 Heading to the Governor

by Julius Young

State: California

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Assembly Bill 570 is heading to the governor, where it faces a dubious future.

Julius Young

The bill, sponsored by Assemblywoman Lorena Gonzalez Fletcher, is a slimmed-down effort to ban gender bias in California workers’ compensation. The concept is rather simple. Labor Code Section 4663 would be amended to add a provision that “No percentage of an apportionment in the case of a physical injury occurring on or after Jan. 1, 2018, shall be based on pregnancy, childbirth or other medical conditions related to pregnancy or childbirth.”

The bill passed the California Assembly on a May 31 floor vote by 61-15, with four not voting. On Thursday it passed the California Senate on a 25-11 vote, again with four not voting.

To the Democratic majority in the Legislature, the bill appears to be a no-brainer, yet another prohibition on gender bias.

The Senate staff analysis gives a more measured take on the bill, however, noting that:

“Proponents have brought forward several examples of apportionment that, like Rice, appear to fall into the arena of qualified medical evaluator (QME) failure. Each example is troubling. However, they are a small sample; thousands of apportionment decisions are issued each year and have been for over a decade. Staff notes that it is currently unclear if such a small sample of apportionment examples demonstrates systemic inequality towards women, or notable examples of physician error.”

The Senate staff analysis goes on to state that:

“The full impact of this legislation, unfortunately, is highly difficult to predict. For one, the impact of apportionment in the workers’ compensation system hasn’t been studied since 2008. Much has happened in the nine years that have passed, and it is likely that the full systemic impact of apportionment is no longer captured by that study. As has been discussed before in previous analyses, apportionment cries out as a topic that requires additional, comprehensive research.

Additionally, it is also difficult to predict how litigation around this apportionment and pregnancy will develop. AB 570 references “medical conditions related to pregnancy or childbirth.” As pregnancy and childbirth can impact virtually every biological system, it is hard to know where this language begins and ends. Moreover, if AB 570 became law, it would be the first time a statute was passed to shape apportionment determinations on the basis of gender, rather than factual medical findings.

The analysis concludes that:

“… at least in the short run, AB 570 will likely encourage litigation to push the boundaries of what medical conditions are considered related to pregnancy or childbirth. It is unlikely that this increased litigation will improve outcomes for either workers or employers.”

I’m assuming the concern here is that if a woman has medical complications from pregnancy such as diabetes, high blood pressure or postpartum depression, this will lead to litigation excluding those conditions from apportionment consideration.

On the other hand, if those are legitimate gender-related complications of pregnancy, why should we as a society allow women’s health to generate a different result for those women in our system?

That’s not to say I am a fan of identity politics. In fact, I believe that identity politics is fostering a toxic political climate as various races and ethnic groups try to stake out their competing claims and grievances. Identity politics played by both Democrats and Republican is a big part of the reason Trump prevailed.

But workers’ comp has been studiously identity-neutral. Whatever you think a good immigration policy should be and whatever your ideas on the progress toward racial equality, California workers’ comp delivers benefits to immigrants and all races in a neutral manner.

The issue with AB 570 seems to be whether the bill is needed to prevent women from getting shorted (as proponents and the Democratic majority in the Legislature believe, and as I would argue) or whether it in fact gives women a special exemption from a supposedly neutral apportionment scheme.

This is a troubling dispute in the system. But we may well see identity issues again if apportionment to genetics becomes widespread and we find that there are racial, ethic and gender overtones.

It is widely anticipated that this bill is in trouble with the governor’s office, as it is not favored by the coalition of stakeholders that has held such sway over the Brown workers’ comp bureaucracy.

One clue that the bill is disfavored by Brown’s folks is that a very high Department of Finance cost score was assigned, predicting millions in extra costs.

Brown vetoed AB 1643 in 2016, though that bill was broader in scope.

Here is a link to the Senate analysis of AB 570, which includes Brown’s veto language on the 2016 bill.

Julius Young is a claimants' attorney for the Boxer & Gerson law firm in Oakland. This column was reprinted with his permission from his blog, www.workerscompzone.com.

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